Local Law Practice in Northern New Jersey-Over 20 years in providing legal solutions

I have spent the last twenty years practicing law working first in NYand NJ, but now am limited to NJ. I appear in traffic court representing clients with traffic tickets like speeding or DUIs. I also represent clients facing disorderly person's charges like shoplifting and assault. Expungements also can be done.
If you have a family matter I am also ready to provide legal assistance.

Friday, September 8, 2017

A recent decision that came out of Hudson
County Superior Court on remand from the New Jersey Supreme Court, which asked
the trial court to conduct a hearing on whether Child Sexual Abuse
Accommodation Syndrome bore scientific liability under N.J.R.E. 702. The
trial court concluded that there was no scientific validity to have testimony
about CSAAS admitted at trial. While this was an unpublished decision, it came
about as a result of an order for remand by the NJ Supreme Court to hold what
is called a Rule 104 hearing.

This decision has a very carefully reasoned
analysis as to why the so-called “expert testimony” on CSAAS is unreliable. It
notes that the use of the word “syndrome” itself is inaccurate and that the
psychologists who refer to it say it should be considered more of a pattern of responses
instead of which is not even acknowledged to be a syndrome but has been
referred to as a "pattern"a pathological or diagnostic condition. The
court duly noted that there was not even a clear definition of what CSAAS. One
expert, Ronald Summit, M.D. described it as “a common denominator of the most frequently
observed victim behaviors.” He himself writes that it was to be understood as a
“clinical opinion, not a scientific instrument.” The defense in the trial argued that the “roadmap”
that this expert refers to was one of advocacy for “their patients in a
therapeutic and courtroom setting.” In other words, trying to explain behaviors
that might belie an accusation of childhood sexual abuse by creating ex post
facto “reasons” such as denial, recantation, secrecy, and so on.

The court noted that the State’s proffer of
using this CSAAS as a “roadmap” to educate juries was to provide an explanation
as to why they show up more commonly among abused children than among
non-abused children. But the court in fact found reliable defense expert
testimony that many of the so-called symptoms that were used to show CSAAS among
sexually abused children were just as likely to show among other sections of
the child and teen population. The court referred to those studies and
controversies in the psychological and psychiatric community as to whether
CSAAS is even accepted. For instance, there is no DSM classification and is not
accepted by the American Psychological Association, the American Psychiatric
Association or the American Psychological Society. It lacks data supporting its
validity, even from one of the State’s experts, Dr. D’Urso, of the Audrey
Hepburn Children’s Hospital, who testified as to his extensive clinical
background in dealing with abused children yet stated that he never produced or
maintained data on the more than 35,000 cases that he handled and never
published any studies of his findings.

The court also made reference to the fact that,
as Section Chief for the Audrey Hepburn Children’s Hospital (AHCH”) which
receives considerable funding from the State and agencies like the Division of
Child Protection and Permanency, there was the inherent potential of bias in
the opinions that he offered to the court on matters of childhood sex abuse.

Much of Dr. D’Urso’s testimony was
contradictory and showed that often non-abused children were as likely or more
likely to exhibit the same patterns of conduct as abused children would . “Helplessness”
would be present in non-abused children. Piecemeal disclosure of facts is a
pattern not only among non-abused children but adults as well.

One of the authorities that the State’s experts
relied on published his initial study in a magazine that was not even a peer
reviewed journal, but in a special issue of Child Abuse and Neglect.
This expert then went on to say how many of his sources of information came
from such visionaries as discussions with Kee McFarlane, an unlicensed
therapist,who was later discredited “child abuse expert” who conducted
manipulative interviews of children who attended a pre-school in Manhattan
Beach, California. This led to a widely reported scandal where 80 teachers,
staff and administrators were placed on trial in what later became recognized
as a horrific witchhunt complete with accusations not only of abuse but Satan
worship and vile abuse. The hysteria surrounding this trial had accusations not
only of child abuse but accusations that school personnel at the McMartin
Pre-School killed animals and babies in front of the children and engaged in
devil worship. It was in fact, the longest criminal trial in this country’s
history and ended with no convictions.

While there is good evidence that child sex
abuse occurs, it is especially important that unreliable theories to explain
things like children’s recantations of abuse, or failures to report alleged
abuse are not automatically construed to “prove’ that abuse occurred, which is
what this made up tool known as CSAAS has often allowed prosecutors and DCPP
attorneys to get away with.

Monday, August 14, 2017

A recent decision of the New Jersey Supreme Court called Bisbing
v. Bisbing, decided only on August 8, 2017, has provided a major shift in
balancing the interests of custodial and non-custodial parents when a custodial
parent seeks to move out-of-state with his or her child(ren). In looking at
this recent decision, we first examine what the courts had to look to in such
contests when one parent sought to move and the other did not consent.

Since
2001, there has been a standard that a custodial parent (or parent with primary
residence) had to meet when seeking to move out-of-state with his or her child
or children. Under the guidelines set forth in the NJ Supreme Court decision of
Baures v. Lewis, a case decided in 2001, the Court made a distinction
between two types of applications when a parent sought permission to move. The
first was when both parents shared physical custody of their offspring. In that
case a change of custody application was required. The second was when the
custodial parent had primary residential custody and the main issue was
providing for visitation with the parent of alternative residence. The New
Jersey Supreme Court, guided by various social sciences studies of the time,
believed that there should be a presumption in favor of permitting a parent to
move provided that the request was being made in good faith and not simply as
an excuse to reduce the other parent’s time with the child; and 2) that there
would be no harm to the child or children; and 3) that the parent of
alternative residence (non-custodial parent) had been offered a reasonable
visitation schedule that could include physical visits as well as things like
phone calls, emails, Skype and the like.

Once
the custodial parent had shown that the request to move was being made in good
faith and offered evidence that there were sufficient reasons for such a move
such as better employment opportunities, family support networks, better
neighborhoods, that there had been fair dealings between the parents in the
past and other factors (a total of twelve in all) then the parent of alternate
residence would need to show why permitting such a move would be harmful to the
children.

Bisbing
v. Bisbing,
A-2-16 (077533) has basically placed petitions to move out-of-state on the same
footing as other requests to change or modify custody or visitation plans,
whether court ordered or contained in consent agreements. The New Jersey
Supreme Court notes that some of the social science studies it relied on in its
Baures v. Lewis decision had not held up over time. It also noted that
many other states had abandoned the principals of believing that it was not
necessarily a harm to the child to have reduced contact with the parent of
alternate residence.

The
Court noted in Bisbing v. Bisbing, citing NJSA 9:2-4 that in
determining custody arrangements, the court should focus on “arrangements that promote a child’s
continuous interaction with both parents” and NJSA 9:2-2 that contains a
policy favoring “frequent and continuing contact with both parents after”
separation or divorce. It also cited the policy that “the rights of both
parents shall be equal.” The Court
looked at the standards applied in other custody and visitation applications
that require a showing by the petitioning party that a “change of circumstances
warranting modification” has occurred.

The
Court took issue with its decision in Baures which required a
petitioning parent who had primary custody of a child only to show that the
move would not have an adverse affect on the child and that the modification
would not have an “adverse affect” on the noncustodial parent’s ability to
maintain a relationship with the child. It also disputed the notion held in Baures
that a relocation that benefited the custodial parent would also benefit the
child. While recognizing the effect of precedence when overruling its decision
in Baures it mentioned that the Supreme Court had come to its
conclusions in that case largely upon findings in the social sciences that had
not necessarily held up upon further investigation. More recent studies questioned the supposed
limited effect of allowing reduced contact with the non-custodial parent. In
fact, it began asserting that having an active contact with both parents was
beneficial to the child.

The
outcome in Bisbing v. Bisbing is to place a dispute between parents when
a custodial parent seeks to move out of state on the same footing as all other
custody and visitation disputes. The Court holds henceforward that the same
“best interests of the child” standard that applies in other applications for
changes or modifications in child custody and visitation, or even changes to
change a child’s surname, will apply to applications for permission to move
out-of-state. Thus, there will no longer be a presumption in favor of the
custodial parent in moving out-of-state to do so, after this recent significant
Supreme Court decision.

Should
you have plans to file a petition either for or against a parent moving
out-of-state it is more important than ever to consult with a family law
attorney.

Tuesday, August 1, 2017

Imagine you own an automobile that you lend to someone. That
person gets pulled over by the police and is suspected of using drugs. The
police decide not only to arrest the person, who might be a son or daughter,
but they confiscate your automobile. Or say you want to buy a house and bring
cash to closing. The police stop you with a large amount of cash and they deem
it suspicious, and suggest it was going to be used to purchase drugs. Should
that happen to you, you are about to enter a descent into the nether regions of
the “justice system” in New Jersey. Presumptions of innocence or guilt do not
matter because the forfeiture of property occurs under a so-called civil rather
than a criminal proceeding. This means certain due process and Constitutional
guarantees, for instance the right to have counsel appointed if you cannot
afford an attorney, do not apply.

Nothing illegal has been committed, but the police can entertain
the notion that these were going to be used for a drug purchase or some other
criminal activity and seize the money. Doesn’t matter if you never get charged
with any crime, you would have to fight to get your money back. And this can
take time, and in the meanwhile you are without your money or other property.

There are two types of forfeitures, one involves actual items that
may be considered criminal instrumentalities in themselves like controlled
substances, illegal firearms, or money that was stolen from a bank. But what
about property that is not involved as an instrumentality of a crime, like the
automobile that someone was riding in when a fellow passenger is found by
police to have drugs, or the house where the son of the owner decides to
perpetrate some criminal act, and the mother or father’s house gets subject to
civil forfeiture. These have nothing to do with the crime, they are not
intrinsically illegal, and yet they might be subject to forfeiture to the
authorities.

And there is no necessity for a criminal conviction. In fact,
property can be seized and no charges ever brought. In one case that I was
involved in, a group of people got stopped near the George Washington Bridge.
They had just left Ohio. One person had cash because she just cashed her income
tax refunds. Another had money that his mother had loaned him for the trip.
They were pulled over because they were deemed suspicious (four black people in
a car with out-of-state plates). No drugs or contraband were found, but the
money itself was deemed suspicious because it was stored in a manner similar to
that used by drug dealers, according to the police.

No charges were brought. The parties had to “prove their
innocence” to the prosecutor by accounting for where the funds came from.
Ultimately, the county prosecutor agreed to return the funds without going to
court, but the parties had to agree not to sue the County for the withholding
of their funds. Otherwise, they would
have to go to court, and the County would only have to prove by a preponderance
of the evidence that the money could have been connected to a drug purchase,
without any proof of drugs.

And if you ever find yourself in such an unfortunate circumstance,
you need to remember that you are not entitled to a public defender, you will
not only have to pay your own court costs and attorney fees if you challenge
the taking, but you may have to pay the fees for the state or county as well.
When many takings are in small amounts, often only several hundred dollars,
most people will just find it easier to walk away rather than to challenge the
taking.

Remember the government has many incentives in conducting these
types of proceedings. In New Jersey, the municipal governments retain 100% of
the value of the property they seize while the Attorney General’s office
retains 95%. These funds are often used to purchase shiny new police cars and
other paraphernalia. Only seven states and the District of Columbia prohibit
civil forfeitures as opposed to criminal forfeitures (where people are afforded
their due process and constitutional rights).
The rest of the states permit anywhere from 45% to 100% of the goods to
be used by the authorities. In Philadelphia, for instance, a lucrative “forfeiture
machine” operates where the City took in more than $69 million between 2002 and
2013. SeePolicing for Profit, 2d Edition, published by the
Institute for Justice.

Reporters in Tennessee found that police officers patrolled the
Interstate 40 westbound lanes where smugglers were known to haul cash back to
Mexico rather than the eastbound lanes where trucks were often smuggling drugs
to the East Coast.

New Jersey’s Use of the Forfeiture Laws
Are Among the Worst in the US According to the Institute for Justice

The
State’s forfeiture laws come under N.J.S.A. 2C:64-1 et. seq. Property subject to forfeiture can include
patently criminal action can be taken as well as buildings or premises where
offenses have been committed. N.J.S.A. 2C;64-1 covers property that is
per se contraband like controlled substances, illegal weapons and the like.

However,
N.J.S.A. 2C:64-3 applies to property that is not specifically
contraband. This is property that might
have been seized in the course of a criminal stop or investigation, but does
not involve property that in itself is illegal. It may involve a car where
drugs have been found, a house where someone engaged in prostitution or cash
that is “suspicious” but not stolen and not shown to have been involved in a
criminal transaction. In those cases, the prosecutor must file a complaint for
the forfeiture of the property and the property owner must file an answer in
the time proscribed by the Rules of Court. The government though, need not
prove that the goods were involved in any criminal act or that the person whose
property was taken knew that there was any illegal usage of their property. It
is up to the property owner to prove their innocence to the government or
court’s satisfaction.

As
stated in N.J.S.A. 2C:64-4 “[T]he fact that a prosecution involving
seized property terminates without a conviction does not preclude forfeiture
proceedings against the property pursuant to this chapter.” So again, say your daughter is stopped on
suspicion of using marijuana. She has cash on her that gets taken. No drugs are
found and she is never charged. Do you necessarily get your money back? No. The
owner

In
order to be able to have the property returned, the owner of the property needshas
to show “by a preponderance of the evidence that the owner was not involved in
or aware of the unlawful activity and that the owner had of the property by an
agent.” N.J.S.A. 2C:6-5. So unlike in the criminal law, the burden of
proof against you is a mere preponderance of the evidence, not beyond a
reasonable doubt, and the burden is upon you to demonstrate that the property
itself is “innocent” and not connected with any criminal activity.

While
this at least codifies the innocent owner idea that the SCOTUS denies
recognition to, it still puts the owner at a great monetary and legal
disadvantage. And when many seizures may involve property of relatively small
worth, the legal costs will far outweigh the benefit to be obtained if one
actually wins one’s case.

How Does New Jersey Fare Against Other
States in Protecting Owners’ Rights?

At
least in one way, the New Jersey Supreme Court recognizes certain
constitutional rights beyond those that the United States Supreme Court will
recognize. In State v. One Honda Accord, 154 N.J. 373 (1998) the
New Jersey Supreme Court recognized that the property owner whose property was
forfeited will have a right to a trial by jury because, under New Jersey
jurisprudence, stating that “the right to trial by jury will be an
inconvenience to the State when it seeks to forfeit innocent property. Mere
inconvenience, however, cannot justify the denial of a constitutional right. Honda,
154 N.J. at 393.

Citing
the above-mentioned study, Policing for Profit, by the Institute for
Justice, a recent article described the use of civil forfeiture by law
enforcement in New Jersey is among the worst in the nation. (S.P. Sullivan, “New Jersey Allowing Cops to
Seize Assets Among ‘Worst in Country’ Report Finds”, http://www.nj.com/politics/index.ssf/2015/11/nj_cops_seize_millions_a_year_re.html. An estimated
$72 million in forfeiture proceeds was reported by county prosecutors from 2009
to 2013 and another $7 million a year came from federal “sharing” programs. While
the county prosecutors do reveal the proceeds that they receive from civil
forfeitures, no such information is available for the various local police
agencies or for the State Attorney General’s office itself. But again, given
the fact that the towns and cities of New Jersey receive 100% of the proceeds
back from civil forfeitures, it is in their interest to keep this money conduit
available, regardless of whether justice is actually served.

Proposed Reforms

There has only been one bill,
S-2267, that has been passed by the New Jersey legislature to attempt a minimal
reform at least by way of offering more transparency in the use of these civil
forfeiture assets. The bill would have required every New Jersey county
prosecutor to compile and submit an annual report to the Attorney General on
how much money or property was seized and whether the person from whom property
was taken was represented by a lawyer and how the forfeited profits were used
by law enforcement. This bill was passed through both houses in January 2017
and then promptly vetoed by our governor, Christie in February claiming that it
would impose an undue burden on prosecutors. http://www.nj.com/politics/index.ssf/2017/02/christie_vetoes_bill_requiring_cops_disclose_seize.html Feb. 6, 2017.

It should be clear from a review of the forfeiture statute in New Jersey and
the way that the laws have been applied on the Federal level with even less
protection for the innocent owner, that despite the contortions of reasoning
that the US Supreme Court has used to justify the lack of due process for
so-called “innocent owners” and its continued attempt to continue the fiction
of “guilty property” that dates back to the times of the Magna Carta, the use
of these civil forfeiture statutes remain a travesty when used against people
who have had no connection to criminal activity or who have merely had the
misfortune of being related to someone who has, and then had their property
forfeited.

Tuesday, June 13, 2017

Why Basic Auto Insurance
Policies are not worth the money if you are ever in an accident.

I have been telling clients of mine, usually
after they have been sued in an auto accident, not to waste time buying a “basic
policy” instead of at least a standard policy and hopefully a standard policy
with more than minimum coverage. People are being deceived, even on television
commercials, into believing that by buying a basic policy they are insured.
Yes, they receive an insurance card that they can show a police officer or a
court as evidence of insurance coverage. But if you are ever in an automobile
accident, either as a victim or as a perpetrator, you may find yourself sadly
under covered by your insurance. If you are sued for personal injuries by
another driver, you will find that your policy will not cover you or provide
you with legal representation, unless you got the “optional” liability
coverage. And if you have injuries and you sue the other driver, if they lack
necessary coverage, you will find that you cannot get under/uninsured motorist’s
coverage on your policy. And your so-called optional liability coverage is only
for $10,000.00, so if you are sued, the most the insurance company will pay in
your defense is $10,000.00 but at least they will represent you. While
insurance regulations require insurance companies to inform purchasers of these
basic policies that they will not have legal representation without the
optional liability coverage, I have not found one client who came to me who at
least applied for that minimal coverage. And it is doubtful that the brokers
that sell these policies are explaining the risks.

In a standard policy, medical treatment under
PIP (Personal Injury Protection) insures that recipients get treatment and that
doctors are reimbursed based upon defined schedules for medical care. (New Jersey
Administrative Code, NJAC 11:3-4.2.
Deductibles and co-pays are defined under the law although additional
coverage may be available. While some people may choose to use their health
insurance instead of their auto coverage if they are in an accident, the one
benefit of PIP coverage is that fee schedules are mandatory. That means a
doctor or hospital can only bill you for what PIP’s schedule will pay for. The
health care provider can charge you in excess of what your regular health
insurance provider may pay. The benefit in using your health insurance though
is that you will often have greater access to treatment without being
challenged by the PIP provider as to unnecessary treatment.

The basic policy offers PIP coverage for the
insureds only up to $10,000; and members of their families up to $15,000 and up
to $5,000.00 for property damage coverage. Unless you have the optional
liability coverage (up to $10,000) you are on your own if you get sued. As the
basic policy should state in its provisions: the policy “may subject the named
insured to a claim or judgment for noneconomic loss which is not covered by the
basic or special automobile policy, and which may place his assets at risk, and
in the event the named insured is sued, the insurer shall not provide legal
counsel.”

Even worse is the special policy. This is a
policy to provide coverage to low-income people who are on Medicare and whose
licenses are in good status. This is the so-called $1 a day policy. While this
policy may keep you from going to court or even jail if you get stopped by the
police or are in an accident, it is virtually useless if you are sued, or if
you yourself are the victim of an accident and need treatment before what
Medicaid is going to afford under the terms of the special policy. And again,
if you get sued, you are on your own.

The State is at fault for encouraging drivers
to have these types of policies. Insurance really was meant to provide coverage
for the victims of automobile accidents and these policies fail to do that by
not providing liability coverage. Yet they are being touted by insurers, even
on television, as a way of proving that you have insurance coverage. The
legislature should go back to the drawing boards and either remove these
policies or require that they provide at least some form of liability coverage.
As an attorney who has represented a number of drivers involved in accidents
who thought they were “covered” I can say that they find that they either have
to pay for their lawyers themselves or try and file for bankruptcy because they
are usually going to be sued for money they do not have. Or they risk having a
judgment against them that can be on their record for years to come.

Wednesday, May 31, 2017

New Jersey has recently changed its conditions for emancipation of
a minor to make it less of a matter of discretion for the deciding judge when
deciding whether or not to terminate child support obligations when a child
reaches eighteen years of age. Prior to the law being amended in January 2016,
the emancipation of a child would occur under when a child reached age 18
unless certain conditions applied such as a child becoming financially
independent. Howevcr, under earlier law, there was no automatic emancipation of
a child at the age of majority, it was always left up to a judge’s discretion.

Emancipation could be extended beyond age
18 for a number of reason. First and foremost, is if there is a matrimonial
settlement agreement or court order that extends the time of a child to receive
child support. If a child is suffering under a disability that prevents that
child from being self-sufficient, that could potentially defer the ending of
child support obligations indefinitely. Likewise, if a child attends a college
or vocational school, the child would still be entitled to child support. However,
if a child is enrolled in a military academy like West Point or Annapolis, the
child is deemed to have entered active military service and thus is considered
emancipated. Bishop v Bishop, 287 N.J. 593 (1995). Depending upon
family circumstances, this can even extend to graduate school.

Termination of child support could occur
by changed circumstances. These can include a child’s death, marriage,
termination of the parent’s parental rights, or entry into the military. It may
also occur if a child graduates high school but does not continue school beyond
high school. The child must no longer be depending upon the parents for
support. Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).

Under the new statute N.J.S.A.
2A:17-56.67, a number of changes occurred as of January 2016. Prior to the
change many property or marital settlement agreements provided that child
support was capped at age 23 whereas now, emancipation operates by matter of
law at age 23. Similarly, termination of child support is to occur
automatically when the child marries, enters military service or dies or
reaches age 19 unless exceptions occurred which included the above-mentioned conditions
like school, disability, or out-of-home placement through the Division of Child
Protection and Permanency.

Probably the most significant change is
that the emancipation should be automatic unless there is a reason not to
emancipate the child. The new statute provides that child support terminates by
operation of law rather than by filing of a motion to emancipate or end child
support by reason of changed circumstances. When Probation is involved, they
are supposed to provide notices to parents of the proposed termination of child
support when the child has reached the age of 23 which is the new cap when
child support is to terminate. This notice is to be provided at least 180 days
prior to the proposed termination date and then again at least 90 days prior to
that date. In fact, Probation is supposed to cooperate with both parents by
other means as well including text messages, emails or telephone calls. And
rather than the non-custodial parent having to file to have the child
emancipated, the custodial parent has the obligation to show why the child
should not be emancipated.

So, all in all, the recent changes to the
emancipation statute makes it more payor friendly, and helps restrict the
discretion of the court. Before, when emancipation was sought for a child that
turned age eighteen, a “fact-sensitive” inquiry was required to determine the
right to continued parental support. Newburgh v. Arrigo, 88 N.J.
529, 543 (1982), a New Jersey Supreme Court decision. But now, the statute sets
conditions when emancipation will automatically occur by reason of law, such as
attaining age of 23, entering the military or other conditions set forth in
this statute.

It also appears from the statute that the
impact on child support orders would apply to orders that were issued before
the enactment of the statute, so anyone who has a child support order, who
knows for instance, that the child has attained the age of 23, should make sure
that their child support obligation is terminated. In those instances where
there is a reason to extend support beyond that age, for instance for a
disability, the court will have to find a different condition for providing
such financial support other than under the provision of child support.

Reflections on practicing law

This blog deals with areas of law that I find interesting or relevant to my practice, which includes family law, traffic and minor criminal and civil litigation. I can be contacted at 973-665-6367 if you wish to discuss a legal matter, or you can go to my web page at www.cliftontrafficlawyer.com or https://www.facebook.com/anthonyvanzesq/ to see my latest videos and posts.

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About Me

Babyboomer. After college I drifted into different types of careers until I began teaching history in NYC at the middle school level. Decided to get into law after I had enough dealing with adolescents. After 20 years in legal practice, I have begun my new career in financial services and insurance sales.